Customary law was extinguished by the passage of criminal statutes of general application, te facts and circumstances arising from the defendant’s Aboriginality, nmely the operation within her Aboriginal community of practices affecting her, rmain relevant. Te courts are entitled to pay regard to those matters as relevant circumstances in the sentencing process. Te court observed that the wishes of the victim of the offence in relation to the sentencing of the offender are not usually relevant, ad that the wishes of the relevant community, o which the victim leading member, my not be permitted to override the discharge of the judge’s duty.
Nnetheless, tey may be taken into account on mitigation. Tis case illustrates how evidence of traditional customs and beliefs may be relevant to an explanation of the defendant’s conduct, mtigating the seriousness of the offence. I that respect, i is not strictly a precedent for the recognition of Aboriginal customary law, i so far as that term is understood to mean something akin to “a system of rules of conduct which is felt as obligatory by the members of a definable group of people”.
The defendant lit a number of fires believing this would frighten evil spirits away, sortly after he had been threatened by his father with ill fortune or punishment at the hands of tribal kadaitcha men. Te mention of kadaitcha tends to strike fear into the hearts of many Aboriginal people. In fact, Jstice Zelling observed that a threat of use of kadaitcha would produce an immediate superstitious panic in the mind of the person threatened. Te defendant “was literally fear for his life”.
Wen police officers attempted to apprehend the defendant, h assaulted them. Te appellate court (hearing an appeal on severity of sentence) accepted that the defendant’s state of mind had been affected, t some extent, b the threat of the “kadaitcha2” men and that this mitigated the seriousness of the offence. Te trial judge had failed to make allowance for “the mitigating circumstances (particularly those arising from the culture of the appellant) which clearly existed”. Te trial judge admitted into evidence a letter signed the Chairman Town Clerk of the Yirrkala Dhanbul Community Association stating the effect of the defendant’s imprisonment on the community and its desire that he be returned to the community to be dealt with in the traditional manner. ...
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